T.S. VS. P.T. (FM-02-1804-07, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0679-18T2
T.S.,
Plaintiff-Respondent,
v.
P.T.,
Defendant-Appellant.
__________________________
Submitted October 27, 2020 – Decided December 22, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1804-07.
Newsome O'Donnell, LLC, attorneys for appellant
(Edward J. O'Donnell and Jeffrey B. Hodge, of counsel
and on the briefs; Aaron Cohen and Rebecca E. Frino,
on the briefs).
Donohue, Hagan, Klein & Weisberg, LLC, attorneys
for respondent (Francis W. Donohue, of counsel and on
the briefs; Alex M. Miller, on the briefs).
PER CURIAM
Following their divorce in 2010, the parties filed numerous motions
disputing alimony, child support, equitable distribution, their rights to credits,
and ensuing attorneys' fees. Defendant, the former wife, appeals from
provisions in several post-judgment orders that reduced the alimony and child
support she was receiving, denied her request to obtain more discovery
concerning plaintiff's assets and to reopen equitable distribution, awarded
plaintiff a credit, and denied her request for attorneys' fees. Plaintiff cross-
appeals from provisions in post-judgment orders and rulings that admitted
certain evidence, denied his request for additional credits, and enforced a
provision in the parties' matrimonial settlement agreement that required him to
pay for unused parenting time.
The family court considered and ruled on various motions over several
years and ultimately conducted an eight-day plenary hearing. The court then
issued a forty-two-page written opinion setting forth its findings of fact and
conclusions of law. Having reviewed the extensive record and applicable law,
we discern no error or abuse of discretion in the rulings concerning alimony,
equitable distribution, discovery, credits, admission of evidence , and attorneys'
fees. We reverse the provision in the August 30, 2018 order concerning child
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support because the family court failed to apply the governing law on that issue.
Accordingly, we remand that one issue.
I.
The parties were both born and raised in Turkey and separately came to
the United States of America. 1 They met in 1993 in Texas and were married in
1994. Thereafter, they moved several times and eventually resided in New
Jersey. They have three children: E.S., born in February 2001; A.S., born in
April 2003; and R.S., born in April 2003. All the children have special
educational needs.
Plaintiff filed for divorce in 2007. In 2010, after three years of extensive
litigation, the parties, with the assistance of counsel, negotiated and entered into
a Matrimonial Settlement Agreement (MSA). The MSA was incorporated into
a final judgment of divorce that was entered on June 7, 2010.
Under the MSA, plaintiff agreed to pay defendant alimony of $120,000
per year for 10 years. In addition, plaintiff agreed to pay defendant child support
of $144,000 per year. The MSA also required each parent to deposit $1,000 per
month into a savings account or other investment account for the children.
1
We use initials and titles to protect the privacy of the litigants and preserve
the confidentiality of certain records because we discuss some of their financial
circumstances. See R. 1:38-3(d).
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Furthermore, the MSA stated that each parent would be responsible for his or
her childcare expenses, but if plaintiff failed to exercise his parenting time, he
would reimburse defendant for her extra childcare costs up to $150 per day.
Defendant has a master's degree in business administration in finance. In
2000, she earned $93,000 working for ARC Partners. She stopped working
during the marriage after the parties' first child was born in early 2001.
Plaintiff has a degree in economics from the University of Istanbul and a
degree in business computer information systems from the University of North
Texas. During the marriage, plaintiff worked as a project manager, a computer
programmer, and had an ownership interest in a computer software company,
Future Technology Associates, LLC (FTA). FTA was established in 2005.
Initially, plaintiff owned forty percent of the company and he had two partners
- - Jonathan Krohe and Derek Wong - - each of whom owned thirty percent of
FTA. In 2006, plaintiff and Krohe purchased Wong's interest, and thereafter
plaintiff owned sixty percent of FTA and Krohe owned forty percent.
In 2005, FTA signed a contract with the New York City Department of
Education (NYDOE) to provide information technology services to the
department. The 2005 contract called for FTA to be paid on a per diem basis
for employees who worked on the services for the NYDOE. The estimated cost
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of the contract to NYDOE was $2.5 million per year. That contract was
extended through 2009.
In 2007, plaintiff and Krohe established a company in Turkey, know n as
Krono. Thereafter, Turkish-based consultants of Krono did work for FTA on
the NYDOE contract.
In 2009, the New York Daily News published a series of articles
questioning the legitimacy of the FTA-NYDOE contract. In particular, the
articles raised questions about FTA's use of foreign workers. In late 2009, the
Special Commissioner of Investigation for the New York City school district
(SCI) began to investigate FTA, plaintiff, and Krohe.
It was in this context that the parties negotiated the MSA. The MSA states
that FTA's loss of the NYDOE contract "may" constitute a change of
circumstances. Specifically, paragraph thirty-five of the MSA states:
The parties acknowledge that the Special Commission
of Investigation ("SCI") for the New York City
Department of Education is currently investigating
FTA and the Husband as a President of the corporation.
The results and recommendation of that investigation
may potentially have an impact on the continued
existence of FTA's current Contract with the New York
City Board of Education and/or the value of the contract
and its other provisions and terms. In the event that
FTA's contract with the New York City Board of
Education is terminated or the value of the contract is
decreased, the parties agree that either event may
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constitute a change of circumstances warranting a
review and modification of the alimony and child
support provisions of this Agreement upon application
properly made by either party to a court of competent
jurisdiction.
In May 2011, the NYDOE terminated its contract with FTA. Thereafter,
the SCI sought to depose plaintiff and other persons associated with FTA. On
the advice of his attorney, plaintiff asserted his Fifth Amendment right not to
testify in connection with the SCI investigation.
In September 2011, the SCI issued its final report. The report stated that
plaintiff and FTA had committed fraud by failing to reveal ownership of Krono
and by overcharging for the work done by Krono employees. In that regard, th e
SCI report asserted that plaintiff and Krohe would pay Krono employees $10 to
$14 per hour for work, but then bill that work to the NYDOE at $110 per hour.
In December 2015, the NYDOE sued FTA, plaintiff, and Krohe seeking
$75 million under the New York False Claims Act. In October 2018, FTA,
plaintiff and Krohe settled with NYDOE. The amount that FTA and plaintiff
paid in connection with the settlement has not been disclosed in the record
before us. Plaintiff represents, however, that the settlement was without
admission of any liability or fault. Plaintiff also represents that, to date, no
criminal charges have been brought against him or FTA.
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Following the issuance of the SCI report in September 2011, the parties
filed a series of motions and cross-motions. In 2011, defendant sought to reopen
discovery concerning plaintiff's assets and to reopen the judgment of divorce to
allow her to obtain more equitable distribution. Following an appeal to us and
a remand, defendant was allowed to conduct more discovery. In 2016, the
family court conducted an evidentiary hearing. On May 3, 2017, the court issued
an opinion and order denying defendant's request for more discovery and
denying her request to reopen equitable distribution. In making that ruling, the
court found that plaintiff had produced all relevant discovery.
In May 2013, plaintiff moved to terminate or modify his alimony and child
support obligations. Plaintiff claimed that after the loss of the NYDOE contract,
he was unable to obtain comparable work for FTA and he was also unable to
obtain comparable income for himself.
In support of his motion, plaintiff filed a case information statement (CIS)
claiming he owned assets that had a total value of just over $667,000. Plaintiff's
CIS also listed a fifty percent ownership interest in a company named Famkro,
but he did not value that interest.
Following a series of additional motions and cross-motions, the family
court found that defendant had made a prima facie showing of a change of
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circumstances, allowed discovery, and then conducted a plenary hearing. The
hearing began in December 2017 and continued on seven non-consecutive days
into June 2018.
On August 30, 2018, the court issued a written opinion and order. The
order: (1) reduced plaintiff's alimony payment to $60,000 per year, to be paid
$5,000 per month, retroactive to May 13, 2013; (2) reduced plaintiff's child
support payments to $36,000 per year, to be paid $3,000 per month, retroactive
to May 13, 2013; (3) granted defendant's request to enforce the missed parenting
time clause in the MSA and ordered plaintiff to pay $55,270; and (4) denied
both parties' request for attorneys' fees.
In its opinion, the family court made detailed findings of facts. With
regard to plaintiff's past income and his ability to currently earn income, the
court found that: (1) between 2002 and 2005, the parties' joint income averaged
$198,697 per year; (2) in 2006, plaintiff's income had been $1,266,000; (3) in
October 2010, plaintiff purchased an interest in Famkro, LLC (Famkro), a real
estate holding company that owned 6 properties worth $8,564,000; (4) the FTA
lost its contract with NYDOE in 2011, and plaintiff had not been able to obtain
comparable contractual work for FTA, nor had he been able to obtain
comparable work for himself; and (5) $300,000 of annual income should be
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imputed to plaintiff based on his ability to earn income and his investment
income from Famkro.
In making those findings, the court noted that plaintiff had failed to inform
it of the value of the properties owned by Famkro. The court also pointed out
that plaintiff had failed to disclose in his CIS a $225,039 tax refund he received
in 2012.
Concerning the loss of the NYDOE contract, the court found that it could
not determine that the contract had been terminated as a result of plaintiff's
alleged fraudulent conduct or any other alleged wrongdoing on his part. In that
regard, the court noted that plaintiff had not been charged with criminal conduct
in connection with the NYDOE contract. The court also stated that plaintiff had
not been found civilly liable to NYDOE. 2 The court also noted that when the
parties negotiated their MSA, they expressly acknowledged the existence of the
SCI investigation and the possibility that the NYDOE contract could be lost.
Concerning defendant, the court found that in 2018: (1) she was employed
by Orica Nitro, a company owned by her father; (2) she owned stock in Orica
2
At the time that the court made this finding in August 2018, the civil action
against FTA and plaintiff was still pending. That action was resolved by a
settlement reached in October 2018. As already noted, plaintiff represents that
the settlement expressly stated that plaintiff did not acknowledge any
wrongdoing or civil liability.
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Nitro worth approximately $1.4 million; (3) she owned other assets worth over
$1.5 million; (4) she substantially understated her assets and income at the
hearing; and (5) $80,000 of annual income should be imputed to her.
Based on those findings, the court reduced plaintiff's alimony obligation
from $120,000 per year to $60,000 per year. The court also reduced plaintiff's
child support obligations from $144,000 per year to $36,000 per year, which the
court reasoned neared "the percentage reduction in plaintiff's income from
$1,266,000 per year to an imputed income of $300,000 per year."
Addressing the missed parenting time, the court found that it was
undisputed that plaintiff had not exercised parenting time with the children for
over two and a half years. Consequently, the court applied paragraph fifty-four
of the MSA and found that plaintiff owed defendant $55,270 for missed
parenting time. The court then offset that amount against credits for plaintiff's
overpayment of child support.
Finally, the court analyzed the factors relevant to an award of counsel fees
and found that neither party was entitled to an award. The court also found that
neither party had "taken a bad faith position in this matter."
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II.
Defendant appeals from portions of orders entered on August 30, 2018,
May 3, 2017, October 16, 2015, and October 5, 2015. Plaintiff cross-appeals
from portions of some of those orders, as well as evidentiary rulings. The orders
entered in 2017 and 2015 became final after the family court conducted a plenary
hearing and issued its August 30, 2018 order. The issues raised by the parties
concern the family court's rulings on: (1) alimony; (2) admission of evidence
related to the alimony ruling; (3) child support; (4) discovery and reopen ing
equitable distribution; (5) credits to plaintiff; (6) enforcement of the MSA
provision concerning plaintiff not exercising parenting time; and (7) attorneys'
fees.
The scope of our review of an order issued by the family court following
a plenary hearing is limited. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We
will not disturb the factual findings made if they are supported by substantial,
credible evidence in the record. Gnall v. Gnall, 222 N.J. 414, 428 (2015); Ricci
v. Ricci, 448 N.J. Super. 546, 564 (App. Div. 2017). In contrast, a "trial judge's
legal conclusions, and the application of those conclusions to the facts, are
subject to our plenary review." Reese v. Weis, 430 N.J. Super. 552, 568 (App.
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Div. 2013) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
1. Alimony
Several well-established principles govern whether a court should modify
alimony. First, if the parties agree to the amount and conditions of alimony, that
agreement should be enforced like any other settlement agreement. Quinn v.
Quinn, 225 N.J. 34, 44-46 (2016). "A settlement agreement is governed by basic
contract principles." Id. at 45 (citing J.B. v. W.B., 215 N.J. 305, 326 (2013)).
Accordingly, the court's role is to "discern and implement the intentions of the
parties" as expressed in the agreement. Ibid. (citing Pacifico v. Pacifico, 190
N.J. 258, 266 (2007)).
Second, unless the parties have agreed otherwise, alimony "may be
revised and altered by the [family] court from time to time as circumstances may
require." N.J.S.A. 2A:34-23. To justify a modification or termination, the
moving party must show "changed circumstances." Lepis v. Lepis, 83 N.J. 139,
146 (1980). In Lepis, the Court recognized a non-exhaustive list of factors that
give rise to changed circumstances warranting modification or termination of
alimony. Id. at 151-52. Similarly, in N.J.S.A. 2A:34-23(k) and (l), the
Legislature identified factors a court needs to consider when a party seeks to
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modify alimony. Among other things, the court should consider the reason for
any loss of income, the efforts by the obligor to obtain replacement income or
new employment, and the financial circumstances of the parties. N.J.S.A.
2A:34-23(k) to (l); see also Lepis, 83 N.J. at 151-52; Larbig v. Larbig, 384 N.J.
Super. 17, 22-23 (App. Div. 2006).
After hearing the testimony and considering the documents that had been
submitted at the evidentiary hearing, the family court found that plaintiff no
longer had the ability to earn $1.2 million per year because of the loss of the
NYDOE contract. The court credited plaintiff's testimony that he had sought to
obtain new contracts for FTA but had been unable to obtain comparable
contracts. The court also rejected defendant's arguments that plaintiff had
caused the termination of the NYDOE contract. In determining that it could not
conclude that the NYDOE contract was terminated because of plaintiff's alleged
fraudulent conduct, the court found that plaintiff had not been criminally
charged nor had he been found to be civilly liable. Moreover, the court noted
that the MSA expressly acknowledged the existence of the SCI investigation and
that the NYDOE contract could be lost.
The family court then went on to find that while plaintiff's income had
decreased, he was voluntarily underemployed, and income should be imputed to
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him. The court then relied on testimony from defendant's expert, Gregory
Haggerty. The court noted that plaintiff produced no rebuttal expert to refute
Mr. Haggerty's methodology. The court considered plaintiff's ability to obtain
income from employment and his investment income from Famkro and imputed
$300,000 of annual income to plaintiff. Those findings are all supported by
substantial credible evidence in the record and they are consistent with the
governing law.
Defendant argues that the family court erred, contending that plaintiff had
failed to disclose all his financial assets and his ability to receive income from
his investments. The family court considered all the arguments that defendant
now makes but did not reach the ultimate conclusion that defendant seeks. In
other words, the court rejected defendant's argument that plaintiff was not
equitably entitled to a reduction in alimony. We discern no abuse of discretion
in the family court's rejection of defendant's arguments.
Defendant also contends that paragraph thirty-five of the MSA does not
support the family court's finding because it only stated that the loss of the
NYDOE contract "may" constitute a change of circumstances. Moreover,
defendant contends that the contract was lost because of fraudulent actions by
plaintiff. As already noted, the court rejected defendant's arguments that the
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NYDOE contract was lost due to fraudulent activities by plaintiff. The court
was also well aware that the MSA stated that the loss of the NYDOE contract
may constitute a change of circumstances. After evaluating those
circumstances, the court found that the loss of the contract did constitute a
change of circumstances.
Defendant also contends that the family court failed to consider the factors
identified in N.J.S.A. 2A:34-23. Initially, we note that defendant argues that the
court failed to consider the factors in subsection (b), which governs an initial
award of alimony. More importantly, a review of the family court's
comprehensive decision demonstrates that the court considered all relevant
factors identified in N.J.S.A. 2A:34-23 and cogently analyzed those factors in
modifying plaintiff's alimony obligation.
2. The Admission of Evidence
In his cross-appeal, plaintiff argues that the family court erred in
permitting testimony from defendant's expert witness, Gregory Haggerty.
Plaintiff argues that Haggerty was not qualified to testify as a vocational expert
and the court erred in relying on his testimony in imputing income to plaintiff.
We review decisions concerning the admission of expert testimony for an
abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,
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371 (2011). The admission of expert testimony is governed by N.J.R.E. 702 and
703, and a trial court may permit opinion testimony by "a witness qualified as
an expert by knowledge, skill, experience, training, or education" in situations
where "scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702.
Haggerty was admitted as an expert on the issue of plaintiff's ability to
earn income. He testified that he was an accountant with a certification in
financial forensics and spent twenty-five years working for the FBI. The family
court admitted Haggerty's testimony for certain purposes and then relied on the
testimony in connection with evidence presented at the plenary hearing. We
discern no abuse of discretion in the family court permitting the testimony of
Haggerty.
3. Child Support
Defendant argues that the family court erred in reducing plaintiff's child
support obligations without using the Child Support Guidelines to determine a
base child support award, and then analyzing the factors in N.J.S.A. 2A:34-23(a)
to determine the supplemental child support award. We agree. Under the
parties' MSA, plaintiff was obligated to pay defendant child support for 3
children in the amount of $144,000 per year. That agreement was reached at a
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time when plaintiff's income was above $1.2 million per year. The family court
found that plaintiff's income had been substantially reduced and imputed income
to plaintiff of $300,000 per year. The family court erred in reducing the child
support by applying the percentage reduction in plaintiff's income.
The Child Support Guidelines need to be applied when establishing or
modifying child support. See R. 5:6A. "If the combined net income of the
parents is more than $187,200 per year, the court shall apply the Guidelines up
to $187,200 and supplement the guidelines-based award with a discretionary
amount based on the remaining family income above $187,200 and the factor
specified in N.J.S.A. 2A:34-23." Child Support Guidelines, Pressler &
Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at ¶ 20,
www.gannlaw.com (2020). "The key to both the guidelines and the statutory
factors is flexibility and the best interest of children." Pascale v. Pascale, 140
N.J. 583, 594 (1995). "If the court finds that the guidelines are inappropriate in
a specific case[,]" it either disregards or modifies the calculation and "the reason
for the deviation and the amount of the guidelines-based award . . . must be
specified in writing." Pressler & Verniero, Appendix IX-A to R. 5:6A at ¶ 3;
Ordukaya v. Brown, 357 N.J. Super. 231, 239-40 (App. Div. 2003) (holding that
any deviation from the child support guidelines "must be accounted for").
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Here, the family court did not explain why it deviated from the guidelines,
nor did the court provide an adequate explanation of why it reduced plaintiff's
child support obligation from $144,000 per year to $36,000 per year.
Accordingly, we vacate the provision of the August 30, 2018 order concerning
child support and remand that one issue for a new analysis and a new ruling.
4. Discovery and Reopening Equitable Distribution
Defendant argues that the family court abused its discretion by denying
her request to conduct further discovery into plaintiff's assets. Defendant also
argues that the family court abused its discretion by denying her request to
reopen equitable distribution due to plaintiff's alleged undisclosed assets. We
reject these arguments.
"An appellate court applies 'an abuse of discretion standard to decisions
made by [the] trial courts relating to matters of discovery.'" C.A. ex rel
Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in original) (quoting
Pomerantz Paper Corp., 207 N.J. at 371).
Following our remand in an earlier appeal, the family court allowed
further discovery concerning plaintiff's assets. The court then conducted a
hearing and on May 3, 2017, the court found that plaintiff had provided all
discovery that was in his custody, possession, and control and he was therefore
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in compliance with the discovery orders. The court then denied defendant's
request to conduct further discovery and to reopen equitable distribution.
Defendant argues that the court's decision not to hold a plenary hearing
on the issue of reopening equitable distribution was fundamentally unfair. "[A]
plenary hearing is only required if there is a genuine, material and legitimate
factual dispute." Siegel v. Lynch, 211 N.J. 230, 264-65 (2012). A judge's
decision to conduct a plenary hearing is reviewed for an abuse of discretion.
Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007). We discern no
abuse of discretion in the denial of defendant's request to conduct further
discovery and to reopen equitable distribution.
5. Credits to Plaintiff
In 2015, plaintiff moved for a credit, contending that he had made an extra
$11,000 support payment in September 2010. Plaintiff explained that he had
sent 2 physical checks to defendant and $11,000 was contemporaneously debited
from his Chase account. He also pointed out the automatic support deductions
from his Chase account had begun that month. In response, defendant contended
that the $11,000 payment was a prepayment for the next month. After
considering the parties' submissions and a motion for reconsideration, the court
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found that plaintiff had shown he had made an extra $11,000 support payment
and thus granted him a credit in an order dated October 5, 2015.
On appeal, defendant argues that the family court's decision was an abuse
of discretion because the evidence supports her theory that plaintiff made a
payment ahead of time. We reject this argument because there is substantial
evidence in the record supporting the family court's finding and we discern no
abuse of discretion.
In his cross-appeal, plaintiff argues that the family court: (1) erred in
awarding defendant $4,650 in unreimbursed expenses; (2) failed to credit him
with $4,822.50 paid to one of the children's physicians; and (3) failed to credit
him with $10,500 in payments made to defendant. Having reviewed the record,
we discern no abuse of discretion because the family court's determinations
concerning these credits were supported by sufficient evidence. Moreover, these
issues do not warrant further discussion in a written opinion. See R. 2:11-
3(e)(1)(E).
6. Enforcement of the MSA Concerning Plaintiff Not Exercising
Parenting Time
Plaintiff contends that the family court erred in enforcing paragraph fifty-
four of the MSA. When the language in a marital settlement agreement is clear
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and unambiguous, the agreement will be enforced as written. Quinn, 225 N.J.
at 45-46. It is not the role of the court “to rewrite or revise an agreement when
the intent of the parties is clear.” Id. at 45. The language of paragraph fifty-
four of the parties' MSA is clear and unambiguous; it states that plaintiff would
be responsible for reimbursing defendant if he fails to exercise his parenting
time. Since there was no dispute that plaintiff missed parenting time with the
children for over two and a half years, we find that the family court did not abuse
its discretion in enforcing this provision of the MSA.
7. Attorneys' Fees
We review the trial court's order concerning attorneys' fees under an abuse
of discretion standard. Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div.
2007) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). N.J.S.A. 2A:34-
23 authorizes family courts to award counsel fees in a matrimonial action after
a judge considers "the factors set forth in the court rule on counsel fees, the
financial circumstances of the parties, and the good faith or bad faith of either
party." Chestone v. Chestone, 322 N.J. Super. 250, 255-56 (App. Div. 1999)
(quoting N.J.S.A. 2A:34-23). Rule 5:3-5(c) states that a court should consider
nine factors, including "reasonableness and the good faith of the position
advanced by the parties[.]"
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The family court here identified the factors enumerated in the court rules
and found that those factors did not support an award of counsel fees to either
party. The court also found that neither party had acted in bad faith. We discern
no abuse of discretion in those determinations.
III.
In summary, we affirm all the orders concerning the rulings on alimony,
admission of evidence, discovery, reopening equitable distribution, credits,
enforcement of the MSA, and attorneys' fees. We reverse and remand for further
proceedings on the provision in the August 30, 2018 order concerning child
support.
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
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